Decision Date: 10/24/95 Archive Date:
10/23/95
DOCKET NO. 93-25 431 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a permanent and total disability evaluation
for nonservice-connected pension benefits.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Constance C. Hickey, Associate Counsel
INTRODUCTION
The veteran had active service from August 1953 to January
1954.
This appeal to the Board of Veterans' Appeals (Board) arises
from the July `1992 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida which denied a permanent and total
disability evaluation for nonservice-connected pension
benefits.
REMAND
On review of the record the Board notes that the veteran's
representative has expressed dissatisfaction with the
completeness of the May 1992 VA examination and has
requested additional examinations by orthopedic, psychiatric
and cardiovascular specialists. The representative asserts
that the VA examinations noted the veteran's complaints of
depression, shortness of breath and multiple joint pain, but
that neither these symptoms nor the impact from a functional
standpoint were adequately addressed. The Board observes
that the May 1992 diagnosis of mental disorders includes a
reference to some evidence of organicity based upon recent
loss of memory. Pursuant to a ruling of the United States
Court of Veterans Appeals in Massey v. Brown, No. 93-135
(U.S. Vet. App. Dec. 6,1994), the VA, in assigning ratings
for mental disorders, must discuss the specific criteria set
forth in the VA's Rating Schedule.
The rating schedule for organic mental disorders provides a
100 percent rating where there is impairment of intellectual
functions, orientation, memory and judgment and lability and
shallowness of affect of such extent, severity, depth, and
persistence to produce total social and industrial
inadaptability. Ratings of less than 100 percent are based
upon the degree of social and industrial impairment produced
by symptoms combinations. A 70 percent rating is assigned
for severe impairment. A 50 percent rating is for
assignment where impairment is considerable. Definite
impairment warrants a 30 percent evaluation. A 10 percent
rating is assigned for mild impairment and a zero percent
rating is for assignment in the absence of impairment. A VA
examination report must address the aforementioned rating
criteria sufficiently to permit an adequate rating of the
veteran's mental disability. Therefore, the Board finds
that an additional psychiatric examination is necessary.
We also note that although the veteran's service-connected
left knee disability is evaluated according to the
provisions of Diagnostic Code 5257, which pertains to
impairment of the knee, recurrent subluxation or lateral
instability, the May 1992 orthopedic examination report does
not address left knee stability. The veteran has
subsequently testified that he also experiences giving way
in the right knee and that he has hard knots in the arches
of both feet which interfere with walking. We find that
additional orthopedic evaluation is therefore indicated. In
view of the passage of time since the most recent VA
examination and the fact that the veteran's hearing
testimony describing his orthopedic symptoms post dates that
examination, the Board finds that a complete orthopedic
examination is necessary to properly assess the current
status of these disabilities.
Additionally, the veteran testified at his personal hearing,
subsequent to the May 1992 examination, to increased
symptoms of shortness of breath, which he considers to be
his most debilitating physical problem, requiring him to
rest after a short walk, and, in his opinion, preventing him
from being employed. This symptom and its etiology also
should be evaluated by an appropriate specialist.
Finally, the Board notes that the veteran's representative
has requested that he be provided a social and industrial
survey, because it is maintained that in addition to his
physical problems, the veteran's educational deficit
precludes him from gainful employment.
Accordingly, the case is remanded for the following actions:
1. The RO should contact the veteran and request that he
submit the names and addresses of all health care providers,
VA and private, who have treated or examined him since May
1992, including the approximate dates of such treatment or
examination. After obtaining any necessary releases, the RO
should then request copies of the records of all treatment
or examinations indicated by the veteran, which are not
currently of record. All records so obtained should be
associated with the veteran's claims folder.
2. Thereafter, the RO should conduct a social and
industrial survey to assess the veteran's day to day
functioning and his social and industrial adaptability. The
survey should be conducted in accordance with the provisions
of VA's Physician's Guide for Disability Evaluation
Examinations. Prior to any direct contact with the veteran,
the examiner should review the veteran's claims folder. The
social worker should elicit and set forth pertinent facts
regarding the veteran's medical history, education and
employment history, social adjustment, and current behavior
and health. The social worker should offer an assessment of
the veteran's current functioning, and to the extent
possible, identify those disorders or symptoms which
interfere with his employment opportunities.
3. The veteran should then be afforded a thorough
examinations by a psychiatrist in accordance with the
Physician's Guide to determine the extent and severity of
his mental disorder(s). The claims folder must be
thoroughly reviewed by the examiner prior to his or her
evaluation. All indicated psychological testing with
applicable subscales should be conducted. The examination
report should clearly describe all psychiatric symptoms
found to be present and set forth all pertinent diagnoses.
To the extent possible the examiner should identify the
etiology of memory loss, and should distinguish the effects
of alcohol abuse from the symptoms and behavior which result
from other mental disorders. As noted above, the examiner
should fully describe the veteran's functional limitations
and degree of impairment from mental disorders other than
alcohol abuse, addressing the aforementioned rating criteria
sufficiently to permit an adequate rating. A complete
rationale must be provided for any opinion expressed.
4. The veteran also should be afforded a thorough
examinations by an orthopedic specialist in accordance with
the Physician's Guide to determine the extent and severity
of orthopedic disabilities. The examination report should
comment on all pertinent clinical findings including range
of motion studies, the effect of pain on motion, and joint
stability.
5. In view of the veteran's claim of severe shortness of
breath he should be provided a cardiopulmonary examination
to determine the nature and extent of these complaints and
to identify, if possible, the underlying disorder. Any
indicated tests or studies should be undertaken.
6. After completion of the above requested development, the
RO should review the veteran's claim for nonservice-
connected pension, on the merits, considering all the
evidence of record. If action taken remains adverse to the
veteran, he and his representative should be furnished a
supplemental statement of the case, containing a recitation
of any new evidence, and a citation to all relevant law and
regulations, and a statement of reasons for actions taken.
An opportunity to respond should be provided.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this action the Board intimates no opinion, either legal or
factual, as to the ultimate decision in this case. No
action in behalf of the veteran is required until he
receives further notice.
Steven L. Cohn
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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